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FAMILIES AND GENERATIONAL ASSET
TRANSFERS: MAKING AND CHALLENGING
WILLS IN CONTEMPORARY
AUSTRALIA
Cheryl Tilse, Jill Wilson, Ben White and Linda Rosenman
Report to Partner
Organisations,
March 2014
PERTH
(LP110200891)
1
Contents
1.0 Project Overview ............................................................................................................................... 2
2.0 Progress to Date ................................................................................................................................ 3
2.1 National Prevalence Survey .............................................................................................................. 3
2.2 Judicial Case File Review ................................................................................................................... 4
2.3 Partner Organisation File Review ...................................................................................................... 5
2.4 On line Survey of Document Drafters ............................................................................................... 7
2.5 Key Informant Interviews ................................................................................................................ 11
3.0 The Next Industry Partner Meeting (for information rather than discussion) ............................... 13
4.0 The research team .......................................................................................................................... 14
Appendix 1 –Preliminary Outcomes from the PO File Review ............................................................. 15
2
1.0 Project Overview
The project aims to establish a national database on the prevalence, patterns and practices of will
making in Australia, the principles underpinning this form of asset distribution and/or contestation
and the issues confronting document drafters and community members. The methodology has five
major components:
1. A national prevalence survey of will making (N= 2,405)
2. A judicial case file review of contested cases (N=245)
3. A document analysis of Partner Organisation (PO) files involving disputed cases (N=139)
4. On line surveys with document drafters (Public Trustee officers and solicitors in private
practice)
5. Key informant interviews with samples relevant to circumstances of interest (including
complex families, complex assets, diverse cultural practices and people aged over 45 years
who have made a conscious choice not to make a will).
The first, second and third components of the project (1, 2 and 3 above) are almost complete and
data collection for the survey of document drafters (the fourth project component) will close at the
end of March. Interviews are currently underway for the fifth component of the project (key
informant interviews).
This document provides:
early results from the PO file review
early results from the on line survey of document drafters
early results from the key informant interviews
update on research progress
Analysis of the on line survey and key informant interview data is currently in progress. Hence only
preliminary findings are provided here. Results will be presented in full at the next Industry Partner
meeting in September 2014.
3
2.0 Progress to Date
2.1 National Prevalence Survey
Purpose
The national prevalence survey explored the prevalence of will making in Australia, the triggers to
making, changing or not making a will, advice sought when making and changing wills and the way in
which assets are typically distributed through wills.
Progress
The survey has been completed and the data extensively analysed. A copy of the final report was
provided to POs via the Industry Partner meeting in March 2013. During analysis of national
prevalence survey data, emergent themes, as well as issues requiring validation and/or further
exploration in subsequent key informant interviews were identified.
In addition to the report, national prevalence survey outcomes are also being reported in a
publication titled Keeping it in the family: will making prevalence, triggers and intentions. This
academic paper will be submitted to a high ranking socio-legal journal (Journal of Law and Society).
Work on this publication is ongoing. A draft of this document (then titled Making and changing wills
in contemporary Australia: prevalence, triggers and intentions) was forwarded to the POs for
comment in November 2013 with no changes being requested. A second paper is a publication
titled Prevalence and predictors of advance directives in Australia, which also reports on national
prevalence survey data. This paper will be submitted for review in the next two months. Work is
also underway on a third paper determining the prevalence of planning documents (wills, advance
directives and Enduring Powers of Attorney for financial matters) and examining sociodemographic
characteristics related to the number of planning documents completed by survey participants. This
paper will be submitted to an international gerontology and geriatric medicine journal (Australasian
Journal on Ageing). A draft of this publication will be circulated to POs for feedback and approval
prior to submission.
4
2.2 Judicial Case File Review
Purpose
This part of the research involved a review of all adjudicated succession law cases in Australia during
a 12 month period (January – December 2011). The purpose of this judicial case file review is to
identify the legal grounds relied on in contesting wills, disputants’ underlying motives and the
distributional and equity principles that underpin judgments about contested wills. This analysis will
aid our understanding of those disputes most likely to end up in court and principles applied by the
Court when resolving the matter. Initial analysis of judicial case review data assisted in identifying
the target groups for the semi-structured interviews.
Initial themes were discussed at the Industry Partner meeting in March 2013 and feedback was
provided on the work undertaken to date. Cases meeting inclusion criteria have been identified,
summarised and analysed. Work has been reported in a draft publication titled A snapshot of
succession law contests in Australia. The target journal for this paper is the UNSW Law Journal, a
highly ranked academic legal journal. A draft of this manuscript will be provided to the POs within
the next two months for feedback and approval.
5
2.3 Partner Organisation File Review
Purpose
The Partner Organisation (PO) file review data was collected from cases involving a dispute dealt
with, in the first instance, by the POs. Many disputes dealt with by the POs do not go to court, or are
settled outside court. The review of public trustee case files will augment the judicial case file
review.
Progress
Ethical clearance to collect de-identified data from these files was obtained and, with the POs, a
coding template and notes was developed and piloted. The main study commenced 1 March 2013.
Data collection during the main study involved working with partners to review all cases involving a
dispute closed between March/April 2013 and September/October 2013. Given its small size, ACT
coded cases closed between October 2012 and October 2013 during the six month main study
period.
Due to restrictions on the type of data able to be provided by the Victorian State Trustees, a less
detailed template was developed for use in Victoria. Where possible, Victorian data was analysed
and reported along with data from the other States. Where analyses involved data items that were
not available from Victoria we have indicated that the findings presented exclude Victorian cases.
The research team obtained 139 cases for the PO file review. We appreciate the considerable in kind
support provided by the organisations involved in this data collection. Data analysis has now been
completed and included examination of the nature of disputed cases and the factors associated with
their occurrence and resolution. Results have been compared with the analysis of the judicial case
file review to provide further insight into contestation and responses.
A copy of the report of preliminary outcomes of the PO file review is provided in Appendix 1.
Overview of key issues (preliminary)
The Partner Organisation (PO) file review was designed to address research questions
relating to will disputes and socio- cultural and family norms, expectations and obligations
that underpin challenges to wills. Findings from this review will augment the earlier review
of all adjudicated succession law cases in Australia between January and December 2011.
The research team obtained 139 cases for the review.
Within the reviewed cases, people generally needed some kind of formalised assistance to
resolve disputes and almost a third ended up going to court.
Most claims launched to contest wills were successful i.e. led to a change in distribution.
The existence of poor and/or complex personal relationships between beneficiaries,
disputants and/or the deceased were a feature of most cases involving will disputes,
particularly where disputes were escalated to court.
There are significant costs of will contestation both for the estate and the individuals
involved in disputes. Previous research has identified that in addition to the direct costs is
the indirect cost of extending the time for probate of the will. This review highlights that one
of the most significant costs of will contestation is the damage to familial relationships that
appears to both drive and be worsened by contestation.
6
Findings of this review highlight the role of Public Trustees in providing financial
management and advocacy services to protect and support vulnerable people in the
community such as those with impaired capacity, as well as offering services such as will
drafting and deceased estate administration.
7
2.4 On line Survey of Document Drafters
Purpose
This component aims to build on the extensive expertise of POs in drafting wills. It will identify those
socio/familial situations which present difficulties to document drafters and their approach to
resolving these difficulties.
Progress
The research team developed a draft survey and completed a pre-test with seven legal colleagues in
June 2013. Ethical clearance for this research component was obtained from The University of
Queensland and Queensland University of Technology. A pilot study was undertaken with our
primary contact/s within each PO, alongside two or three document drafters within their
organisation. The research team adjusted the survey in response to feedback obtained via this pilot
work.
The online survey for document drafters was made live on 9 October 2013. An email containing
background information and a survey link was sent to our primary contact/s within each PO for
distribution to colleagues in their organisation (employed part or full time) with experience in the
area of will drafting. The research team also distributed the survey through relevant State Law
Societies for completion by private solicitors who draft wills. This was to ensure that there is
opportunity to include a diverse national sample of will drafters. All State Law Societies agreed to
distribute information on the survey.
The survey takes around 15 minutes to complete and no identifying information (electronic or
otherwise) is captured by the survey. All responses, therefore, remain anonymous and confidential.
As of 19 March 2014, 219 surveys have been commenced. We have undertaken a preliminary
analysis of 187 responses, excluding the case study section. Please note a number of the surveys
have missing data and/or have only been partially completed. The survey will remain open until 31
March, and hence respondents may still return to a partially complete survey and it is anticipated
that additional respondents will also complete the survey. Results provided are early findings and
should not be considered indicative of final results. Additionally, preliminary findings are for not
available for public distribution. As data collection is ongoing findings will be presented in full at the
next Industry Partner meeting.
Next steps are to complete data collection and more thoroughly analyse the full dataset and case
study data. This survey relies predominantly on quantifiable measures therefore is being analysed
in a similar way to the prevalence survey and PO file review data. Findings will be presented in full at
the next Industry Partner meeting.
8
Overview of key issues (preliminary)
Table 1 below provides a snapshot of participant characteristics.
Table 1 Characteristics of respondents
Variable n %
Respondents (n=187) Jurisdiction New South Wales Queensland Western Australia Victoria Tasmania South Australia Australian Capital Territory Northern Territory
38 30 24 22 16 7 6 0
24 19 15 14 10 4 4 0
Area Capital city 62 48 Urban area Regional area
14 36
11 28
Current occupation Will drafter/solicitor within a Public/State Trustee 64 43 Private solicitor - general 34 23 Private solicitor – wills and estate planning specialist 31 21 Will drafter/solicitor within a trustee company Other1
10 9
7 6
Average wills drafted per year Mean (SD) Median Range
271 (396.55)2
100 0-2000
Average deceased estates administered per year Mean (SD) Median Range
32.2 (168.56)2
10 0-2000
NB Variables contain missing data, including 40% missing cases for area. Percentages are the proportion of valid cases. 1 Examples of
‘other’ are community lawyer/solicitor, retired, working in local government. 2 Large standard deviations reflect the wide range of values.
Allocation principles used in framing wills and bequests
Use of unequal allocation principles
More than half of will drafters (61%) reported that parents only occasionally chose to divide
their assets unequally between their children (including as alternative beneficiaries).
Reasons for parents’ unequal division from most to least commonly observed were:
1. To reflect the quality of each child’s relationship with the testator
2. To recognise prior financial contributions made by the testator to each child
3. To achieve equitable outcomes (e.g., children obtain similar levels of financial security)
4. To reflect children’s needs (e.g., greater distribution to a child with high care needs)
5. To reflect the degree of care and (non-financial) support they received from each child
6. To recognise prior financial or non-financial contributions the child has made to the
testator’s business or farm
7. To reflect each child's status (e.g., a biological or step child)
9
8. To prioritise cultural and/or religious beliefs (e.g., appointing beneficiaries based on
gender or position within the family, such as the eldest child)
9. Other reasons e.g., lack of contact/estrangement between a parent and child/ren,
concerns about a child’s partner, children have financial difficulties or
gambling/drug/alcohol problems.
Inclusion of non-family members as beneficiaries
Will drafters typically reported that only occasionally do clients intend to include
beneficiaries who are not family members.
Fewer than 20% of respondents considered the inclusion of friends/other people who are
not family members or organisations/groups (including charities) as beneficiaries as
presenting difficulties.
The inclusion of pets as beneficiaries was seen as posing difficulties for will drafters (half of
the respondents identified this situation as ‘difficult’ or ‘very difficult’). However 11% of
respondents reported having not seen clients who intend to include pets as beneficiaries.
Situations presenting challenges to document drafters
Family characteristics identified as creating the most difficulties included:
o Blended families
o Estrangement and family discord
o Children/adult children with disability or mental health problems
o Dislike of child’s spouse/partner
o Presence of a family member with issues related to alcohol/drugs,
spendthrift/bankruptcy/gambling
Estate characteristics often identified as presenting difficulties included:
o Estates including complex trusts arrangements
o Family businesses and farms
o International assets
Approaches used to manage challenges
Respondents were asked to rate how likely they were to employ particular strategies when
faced with a client expressing intentions presenting a high risk of being contested.
Approaches used from most to least commonly reported were:
1. Spending time discussing the likelihood, and reasons why, the will may be contested
2. Encouraging the client to explain their decision in their will or a document to be read
in conjunction with their will
3. Providing advice on the way in which assets are typically distributed through wills
4. Encouraging the client to consider will alternatives (e.g., testamentary trust)
5. Encouraging the client to discuss their intentions with their family members,
executor and important others
6. Encouraging the client to distribute their assets as inter-vivos gifts
7. Taking a leading role in facilitating discussions between your client and their family
members or significant others about your client’s intentions
10
Respondents were then asked what else they might do in circumstances where a client
describes intentions they believe present a high risk of being contested. Common strategies
included explaining the costs (economic, social etc.) of will disputes and making file notes
regarding the client’s intentions and stated reasons together with the advice given.
Respondents considered the suggested the following approaches to be only somewhat
effective in reducing the risk of contestation:
o Encouraging clients to explain their decision in their will or accompanying document
o Encouraging clients to discuss their intentions with their family members, executor
and important others
o Encouraging clients to distribute their assets as inter-vivos gifts
Further, half of those surveyed reported that they had never facilitated discussions between
clients and their family members or significant others about the client’s intentions.
11
2.5 Key Informant Interviews
Purpose
This component seeks to develop an in depth understanding of the basis of bequests, principles of
allocation, processes involved in making a will and knowledge of intestacy. These interviews will
explore in depth these and related issues in 60 to 80 interviews with will makers and non-will makers
sampled on the basis of key circumstances of interest.
Based on the identified key circumstances of interest, participants in these interviews include:
A. Testators: Purposive sample of 60 - 70 adults (approximately equal numbers of men and women)
grouped on the basis of three circumstances of interest (complex families, complex assets, cultural
practices).
a) Complex assets (approximately 20 interviews): Target groups will include (1) farmers who
own their own property ; (2) people with significant international assets; and (3) people with a
complex mix of assets such as multiple properties and shares valued over $3 million.
b) Complex families (approximately 15-20 interviews): Target groups will include (1) families
where there has been more than one marital type relationship and children or adult children from at
least one of these. These children or adult children may include biological/adopted and/or
stepchildren of any age; and (2) families with a child or adult child with impaired capacity for
decision making related to intellectual disability.
c) Cultural practices that suggest different forms of family provision than those generally
reflected in family provision legislation (16 interviews): Participants include self-identified members
of Islamic communities in Sydney and Melbourne.
and
B. People without a will: Purposive sample of 20 adults aged over 45 years who do not intend to
make a will (approximately equal numbers of men and women).
Progress
A semi-structured interview schedule was developed by the research team and circulated to the POs
for feedback in October 2013 (see Appendix 2 for the final schedule). Ethical clearance for this
research component was obtained from The University of Queensland and Queensland University of
Technology. Interviews with members of Islamic communities in Sydney and Melbourne
commenced in January 2014 and have now been completed. The Australian Multicultural
Foundation were contracted to recruit and interview Islamic participants. Interviews were carried
out in English to minimise interpreter and transcription costs.
Work is currently underway recruit participants in South East Queensland where the research team
have access to trained interviewers. The research team is also conducting interviews and
commencing data analysis. We aim to complete this phase by September 2014 although this
depends on timeframes for participant recruitment (which has been slower than anticipated thus
far).
12
As of 19 March 2014, 20 interviews (all 16 Islamic interviews and four interviews for other target
groups) have been undertaken, and 19 transcribed and imported into NVivo qualitative data analysis
software. As data collection is currently in progress findings will be presented in full at the next
Industry Partner meeting.
13
3.0 The Next Industry Partner Meeting (for information rather than discussion) 3.1 Results from the on line survey of document drafters
A copy of the final report of outcomes of the on line survey will be provided to POs. The POs will
also be provided with copies of any other publications arising from this research component.
3.2 Results from the key informant interviews
A copy of the final report of outcomes of the key informant interviews will be provided to POs. A
thematic analysis will explore characteristics associated with differing attitudes towards will making
and principles in use e.g. size and nature of assets; family structure; cultural patterns. For non will
makers we will report on knowledge of the implications of intestacy laws, reasons for not making a
will, perceptions of barriers to making a will and alternative transfer strategies in use by these
individuals. The POs will be provided with copies of any other publications arising from this
component of the study.
3.3 Update on research progress
POs will be provided with updates on other research progress at the next Partner meeting.
3.4 Information dissemination
The research team will facilitate discussion of strategies for dissemination of research findings.
14
4.0 The research team Cheryl Tilse – [email protected]
Jill Wilson – [email protected]
Ben White – [email protected]
Linda Rosenman – [email protected]
Rachel Feeney – [email protected]
15
Appendix 1 – Preliminary Outcomes from the PO File Review
Executive summary
The Partner Organisation (PO) file review was designed to address research questions
relating to will disputes and socio- cultural and family norms, expectations and obligations
that underpin challenges to wills. Findings from this review will augment the earlier review
of all adjudicated succession law cases in Australia between January and December 2011.
The research team obtained 139 cases for the review.
Within the reviewed cases, people generally needed some kind of formalised assistance to
resolve disputes and almost a third ended up going to court.
Most claims launched to contest wills were successful i.e. led to a change in distribution.
The existence of poor and/or complex personal relationships between beneficiaries,
disputants and/or the deceased were a feature of most cases involving will disputes,
particularly where disputes were escalated to court.
There are significant costs of will contestation both for the estate and the individuals
involved in disputes. Previous research has identified that in addition to the direct costs is
the indirect cost of extending the time for probate of the will. This review highlights that one
of the most significant costs of will contestation is the damage to familial relationships that
appears to both drive and be worsened by contestation.
Findings of this review highlight the role of Public Trustees in providing financial
management and advocacy services to protect and support vulnerable people in the
community such as those with impaired capacity, as well as offering services such as will
drafting and deceased estate administration.
Introduction The PO file review data was collected from cases involving a dispute dealt with, in the first instance,
by the POs. This research component was designed to answer the following research questions:
1. What are the legal grounds relied on in contesting wills?
2. What distributional and equity principles underpin judgements about contested wills? How do
these vary by state jurisdiction?
3. What implicit factors or motivations underpin the contestation of wills?
Many disputes dealt with by the POs do not go to court, or are settled outside court. The review
involved collection of data on testator and estate features, personal relationships, asset distribution
in wills, disputant attributes, dispute description, resolution processes and outcomes of cases.
For the purposes of this review a dispute included any disagreement about who gets what and why.
This definition was intended to capture disagreements initiated by beneficiaries, persons not
included in the will, and/or the Public Trustee.
16
More specifically, cases involving a dispute were defined as those where:
1. a person engaged in action or argument which had the potential to change what they would
otherwise receive under a will or intestacy provisions,
o this included circumstances where it did not appear that the disputant was directly
motivated to change what they would otherwise receive (e.g., challenging the validity of
a will)
o changes to what was ultimately received included both changes to the financial value of
the bequest or changes to the property received (i.e., financial value of property may
remain the same, but the nature of the property has changed)
2. and this action or argument was persisted with on two or more occasions,
o this included contact through any form of communication, including telephone, email,
solicitor’s letter and in person visits
o contact that did not pursue an action or argument that has the potential to change
what an individual would otherwise receive was not counted (e.g., an enquiry as to the
progress of administering an estate or an enquiry about the way in which assets were
divided)
3. and resolution of the issue required informal and/or formal intervention by someone other
than a beneficiary of the will (note: intervention could include action by a representative from
the office of the Public Trustee or the courts).
Ethical clearance to collect de-identified data from PO files was obtained and, with the POs, a coding
template and notes was developed and piloted. The main study commenced 1 March 2013. Data
collection during the main study period entailed reviewing all cases involving a dispute closed
between March/April 2013 and September/October 2013. Given its small size, ACT coded cases
from October 2012 to October 2013 during the six month data collection period.
Due to legal restrictions on the data able to be provided by the Victorian State Trustees for this
research, a less detailed template was developed for that state. Where comparable data has been
collected, Victorian data was analysed and reported along with data from the other States. Where
no comparable data was available we have indicated that findings presented exclude Victorian cases.
The review comprised 139 cases (see Table 1). New South Wales (NSW), Queensland (QLD) and
Victoria (VIC) provided the most cases (33, 31 and 30 respectively). Western Australia (WA) was
next with 22 cases, followed by 11 from South Australia (SA). The Australian Capital Territory (ACT)
and Tasmania (TAS) each provided six cases. Figures include cases provided during the pilot.
17
Table 1 Number of cases by State (n=139)
Jurisdiction Cases
New South Wales 33
Queensland 31
Victoria 30
Western Australia 22
South Australia 11
Australian Capital Territory 6
Tasmania 6
What was disputed?
Most cases (92%) involved challenges to wills rather than intestate estates.
In almost all cases (98%) there was a single dispute (this figure excludes VIC cases).
Family provision claims were the most frequent category of contest across all States. Table 2
provides the overall figures for types of contests in the file review.
Table 2 Types of contests (n=139)
Type of contests n %
Family provision claims 119 86
Construction cases 5 4
Validity cases 4 3
Other cases 11 8
Disputes involving intestate estates (n=10) were often initiated because there was a family
member (usually a child) with a disability (n=3) or a minor (n=2) seeking a greater share of
the estate than usually entitled to under intestacy provisions. In three cases friends of the
deceased made claims on an intestate estate when no next of kin had been identified.
Features of disputed wills and allocation principles Median estate value was $420,000 (range $40,000-$10,000,000). Table 4 below compares
estate values across the PO file review and judicial case file review data sets.
This data suggests that smaller estates are not immune from contestation.
18
Table 4 Estimated value of estate categories
Number of
estates where value known
Size of estate
Under $500,000
Between $500-$999,999
Between $1m-$2,999999
Over $3.million
PO File
Review
137 60% 25% 10% 4%
Judicial
Case File
Review
145 32% 28% 23% 17%
Principles of distribution were provided in 82% of cases. There was considerable variability
in allocation principles used in wills (refer to Table 5 below).
Table 5 Allocation principles (n=139)
Allocation principle n %
Equality 31 27
Deservedness 28 25
Reciprocity 15 13
Spousal 14 12
Equity 5 4
Need 5 4
Recognition of prior financial
contribution
3 3
Cultural/religious practices 2 2
Other 19 17
NB. Common examples of ‘other’ allocation principles were: most or all of the estate was left to one or more charities, most or all of the
estate was left to only one child at the exclusion of their sibling/s or where spouses received only a right to reside in the martial home.
Multiple response options were allowed.
This finding suggests that the personal circumstances of testators and benefactors impacts
upon the extent to which testators uphold the equity principle. Deservedness, reciprocity
and the desire to provide for a spouse appear to provide strongest justification for unequal
distribution.
Principles of distribution rarely reflected cultural/religious reasons (2% of cases), as was also
found in the national prevalence survey.
To some extent allocation principles varied depending on testator characteristics.
On average testators who used principles of deservedness were older (M=82.3
years, SD=9.38) than those who did not (M=74.9 years, SD=15.19), t (1, 83) =-2.96, p
= 0.004.
Testators born in Australia were more likely than overseas born testators to employ
principles of deservedness when allocating assets in their wills (35% versus 18%
respectively, p = 0.044, Fisher's exact test).
19
Estimated estate value did not impact on allocation principles employed in the will.
Factors relevant to disputes (excludes Victorian cases)
In 62% of cases the nature of the estate (e.g., international assets, family trusts) was not
judged as relevant to the dispute. In these cases information on the nature of the estate
was not provided.
Where the nature of the estate was relevant to the dispute (and hence data on estates was
available), there was substantial variability in estate type/nature reported. Given the small
number of valid cases and the variability within them, it wasn’t possible to determine how
features of estates may contribute to disputes. It is clear, however, that there is contestation
around some quite small estates.
Personal relationships were relevant to the dispute in 75% of cases.
In more than half of the disputes (62%), at least one aspect of complexity within personal
relationships between beneficiaries, disputants and/or the deceased was described.
Involvement of children/adults with a significant disability or ill health was the most
commonly reported aspect of complexity (48% of cases), followed by new spousal/de-facto
relationships (34%), separation or divorce (32%), addition of biological and/or stepchildren
to the relationship structure (25%) or diagnosed drug or alcohol addiction (11%). This
finding points to the complexity of relationships often working in the background to drive
disputes.
Who is likely to dispute? Claims by biological children of the deceased were the largest category of persons initiating
disputes (70% of cases).
Gender distribution was almost evenly split for all disputant types (e.g., primary, joining,
emerging disputants).
The average age of primary disputants was 46 years, while the average age of all disputants
was 52 years. The distribution of disputants’ ages is depicted in Figure 1 below.
20
Figure 1 Age of disputants
Twenty four per cent of disputants were adults with impaired capacity and four per cent
were minors.
Disputants were slightly more likely to be beneficiaries than not (54% of disputants).
In nearly half of the cases (47%) the dispute was described as arising due to exclusion,
although insufficient provision was also common, being reported in 37% of cases.
Role of the Public Trustee
The role of the Public Trustee was most commonly as executor of the will (in 64% of cases),
followed by financial manager for an existing client (23%), administrator of an intestate
estate (6%) or other (7%). ‘Other’ usually referred to disputes in which the Public Trustees
took on dual roles, typically being both executor of the will and financial manager for an
existing client.
The Public Trustee became involved in the dispute during the course of administration (63%
of cases), initiated the dispute (27%), joined an existing dispute (6%) or other (4%).
Where disputant/s had impaired capacity (24% of disputants), the Public Trustee typically
initiated disputes on the behalf of existing clients for whom they were acting as financial
managers. This finding highlights the important role of the Public Trustees in advocating for
clients with impaired capacity, many of whom have significant financial need.
Grounds for contest (excludes VIC cases)
Commonly reported grounds for contest were financial need (32% of cases), followed by
deservingness as a function of type or quality of relationship with the deceased (22%) or
sense of entitlement (19%). All other grounds for contest were identified for fewer than
10% of cases. Multiple responses were allowed.
Processes of resolution The most frequent process of resolution identified was informal negotiation between parties
(48% of disputes); however this process in isolation did not typically achieve a resolution.
0%
5%
10%
15%
20%
25%
30%
35%
< 25 25-34 35-44 45-54 55-64 > 65
21
The majority of cases involving informal negotiation also involved at least one other process
of resolution.
Forty per cent of disputes involved mediation, and in 87% of these cases agreement was
reached. NB. Mediation is compulsory for family provision applications in NSW (by statute)
and QLD (effectively through a practice direction) and there is a strong emphasis on this
practice in all other States.
The most commonly identified driver of efforts to achieve a resolution was the Public Trust
Case Officer (39% of cases), followed by the solicitor for the disputant/s (34%), and other
Public Trust employee (usually Legal Officer) (27% of cases).
There was no relationship between estate value, complexity in personal relationships or
allocation principles and type of resolution processes employed.
Timing of mediation
Data from reviewed cases suggests the time taken to get to mediation may be an important
factor in dispute resolution. The time between notification of a dispute and mediation was
significantly longer where disputes escalated to Court (473 days compared to 217 days for
disputes that did not escalate to Court, p=0.001, Fisher’s exact test).
Time between notification of a dispute and mediation across the States is listed below in
Table 6. While the mean and median values differ considerably, States vary less with respect
to the most common length of time between notification of a dispute and mediation.
Table 6 Time between notification of a dispute and mediation by jurisdiction
Jurisdiction Mean time
(days)
Median time
(days)
Mode time
(days)
Australian Capital Territory 90 90 90
South Australia 96 90 150
Western Australia 267 270 270
Victoria 185 105 90
New South Wales 382 255 150
Queensland 657 540 120
Tasmania 140 120 120
NB. Where multiples modes exist, the smallest is shown.
Relationship with grounds for contest
Cases where financial need was a ground for contest were more likely to be resolved
through agreement being reached during mediation (47% compared to 27% for other cases,
p = 0.049, Fisher's exact test) and resolution by Court – consent order (35% compared to
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11% for other cases, p = 0.006, Fisher's exact test) than were cases where financial need was
not a grounds for contest.
Cases where sense of entitlement was a grounds for contest were more likely to be resolved
through ratification by Deed of Family Arrangement (29% compared to 9% for other cases, p
= 0.028, Fisher's exact test) than were cases where sense of entitlement was not a grounds
for contest. NB. It was not uncommon for multiple grounds for contest to be cited and the
above analyses did not account for this.
Escalation to Court
Almost a third (31%) of cases escalated to Court for resolution (including 15% resolved by
consent order and eight percent resolved by judicial order).
There was no relationship between estate value and whether or not disputes escalated to
Court.
There was no relationship between whether or not disputes escalated to Court and type of
complexity in personal relationships between beneficiaries, disputants and/or the deceased
e.g., young children are the primary beneficiaries of the estate, separation/divorce etc.
However, when there were multiple aspects of complexity within personal relationships
(e.g., where there was a new spousal or de-facto relationship and children or adults with a
significant disability or ill heath) cases were more likely to escalate to Court (61% of cases
with multiple complexities in relationships went to Court compared to 35% of other cases, p
= 0.048, Fisher's exact test).
The quality of relationships between disputant/s and other beneficiaries (before contents of
the will were known) was significantly associated with likelihood of escalation to Court. Half
or more of cases in which relationships were very poor or poor went to Court (60% for very
poor, 50% for poor), compared with none where relationships were good or very good (p =
0.020, Fisher's exact test). Relationship quality likely reflects the level of capacity of the
parties to mediate an outcome.
Factors associated with escalation to Court
Compared to other principles of distribution, cases were significantly more likely to escalate
to Court if allocation reflected spousal distribution (54% of cases versus 25% of cases
without spousal distribution, p = 0.045, Fisher's exact test).
Compared to other principles of distribution, cases were significantly more likely to escalate
to Court if allocation reflected principles of reciprocity (33% of cases versus 8% of cases
without principles of reciprocity, p = 0.014, Fisher's exact test).
Cases were significantly more likely to escalate to Court if the grounds for contest included a
will which did not reflect the testator’s expressed wishes (100% of cases versus 35% of cases
where this was not a grounds for contest, p = 0.048, Fisher's exact test). However, this
result should be treated with caution as only three cases included a will which did not reflect
the testator’s expressed wishes as grounds for contest. Further, it was not uncommon for
multiple grounds for contest to be cited and the analysis did not account for this.
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Outcomes of the disputes
The most frequent outcome sought by the disputant was redistribution of the estate such
that they received some greater, unquantified amount from the estate (34%).
Across claim types most cases (77%) were successful i.e. the contest led to a change in
distribution (this figure excludes VIC cases).
There was no significant relationship between jurisdiction, estimated estate value, contest
type or allocation principles and success rate.
Success of family provision claims differed across claimant types. Table 7 below provides a
snapshot of successful family provision claims by claimant type.
Table 7 Successful family provision claims by claimant type (n=109)
Claims by
partner or ex-
partner
Claims by
child/ren
Claims by
extended
family
Claims by
others
Total
successful
claims
Total claims
83% 76% 73% 64% 139 183
NB. Excludes VIC cases. The ‘children’ category includes step-children and adopted children.
In more than half of cases (61%) the outcome of the dispute was that a compromise was
reached. Generally the disputant/s received some greater amount from the estate.
There was no relationship between principles of distribution or grounds for contest (e.g.,
financial need, deservingness) and outcome of the dispute.
A significant cost of will contestation is damage to familial relationships. There was a
significant difference between the quality of relationships between disputant/s and other
beneficiaries before contents of the will were known and after relationship quality after
contents of the will were known. Eighteen percent of relationships were poor/very poor
prior to contents of the will being known whereas 26% were poor/very poor after contents
of the will were known (p < 0.001, Fisher's exact test).
The median cost incurred by estates was $11,900 (range $0-$500,000).
In addition to costs incurred by estates, almost a quarter of disputants (24%) incurred costs
from the dispute (median cost was $14, 918, range $0-$105,000).
Median estimated time between notification of the dispute and case closure was 9 months
(mode = 6 months, mean = 12 months, range = 0-60 months).
There was no relationship between contest type (family provision claims, construction cases,
validity cases etc.), complexity in personal relationships between beneficiaries, disputants
and/or the deceased (e.g., involvement of children/adults with a significant disability or ill
health, new spousal/de-facto relationships separation or divorce) or quality of relationships
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between disputant/s and other beneficiaries (before contents of the will were known) and
the cost incurred by estates or time taken to resolve disputes.
There was no relationship between whether or not disputes escalated to Court and type of
complexity in personal relationships between beneficiaries, disputants and/or the deceased
e.g., involvement of children/adults with a significant disability or ill health, new spousal/de-
facto relationships separation or divorce etc. However, when there were multiple aspects of
complexity within personal relationships cases were more likely to escalate to Court (61% of
cases with multiple complexities in relationships went to Court compared to 35% of other
cases, p = 0.048, Fisher's exact test).
The quality of relationships between disputant/s and other beneficiaries (before contents of
the will were known) was significantly associated with likelihood of escalation to Court. Half
or more of cases in which relationships were very poor or poor went to Court (60% for very
poor, 50% for poor), compared with none where relationships were good or very good (p =
0.020, Fisher's exact test). Relationship quality likely reflects the level of capacity of the
parties to mediate an outcome.
Relationship between processes of resolution and costs to the estate
On average, disputes involving informal negotiation incurred lower costs to the estate
($10,565 compared to $35,450 for other disputes), t (1,75) = 2.99, p < .004.
Other resolution processes (mediation, escalation to Court etc.) were unrelated to costs
incurred by estates.
Relationship between processes of resolution and time taken to resolve dispute
Disputes involving informal negotiation took less time to resolve (8.9 months compared to
14.7 months for other disputes), t (1,107) = 3.19, p < .002.
Conversely, disputes where the process of resolution included resolution by Court (Judicial
Order) took more time to resolve (20.9 months compared to 11.4 months for other
disputes), t (1,107) = -2.44, p < .016.
Other resolution processes (mediation, escalation to Court etc.) were unrelated to time
taken to resolve disputes.
Contributor/s to the observed outcome (excludes Victorian cases)
There was considerable variability in the reported contributor/s to the observed outcome of
disputes. The most common response was ‘other’ (48% of disputes) e.g., disputants’ claim
was based on a ‘weak’ case, beneficiaries and/or individuals excluded from the will had a
significant disability or ill health. Further contributor/s to observed outcomes included all
parties demonstrating a willingness to compromise (20% of cases), parties acknowledging,
supporting or agreeing with the claim brought by the disputant and/or a desire by one or
more parties to settle the matter quickly (14% each).
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The key contributor to the observed outcome was more likely to be all parties demonstrated
a willingness to compromise (38% compared to 15% of other cases, p = 0.024, Fisher's exact
test) or parties acknowledge/support/agree with claim brought by disputant (33% compared
to 10% of other cases, p = 0.014, Fisher’s exact test) in cases where the grounds for contest
included sense of entitlement.
In cases where the grounds for contest included financial need the key contributor to the
observed outcome was more likely to be greater certainty in the mediation process than
found in other resolution approaches (15% compared to 3% of other cases, p = 0.031,
Fisher's exact test). This observation reflects the fact that cases where financial need was a
grounds for contest were more likely to be resolved through agreement during mediation.
The key contributor to the observed outcome was more likely to be desire to avoid further
costs to the estate in cases where the grounds for contest included deservingness as a
function of type or quality of relationship with deceased (25% compared to 8% of other
cases, p = 0.038, Fisher's exact test). NB. It was not uncommon for multiple grounds for
contest to be cited and the above analyses did not account for this.
Variations across jurisdictions
Compared to other jurisdictions, NSW had a large proportion of very high value estates
(nearly a quarter of estates had an estimated value over $1 million).
For family provision claims, WA had a significantly lower success rate than the other States
(45% compared to 81-100% of other cases, p = 0.014, Fisher’s exact test).
Role of the Public Trustee varied across jurisdictions. In many jurisdictions, the most
common role by far was as executor of the will. However, in WA and VIC the Public
Trustee’s role was often as financial manager for an existing client. In WA this was the most
common Public Trustee role (46% of cases) and in VIC acting as financial manager for an
existing client and executor of the will were the most common roles (40% each).
Consistent with the above finding, compared to other jurisdictions, VIC and WA had a high
proportion of cases involving disputants with impaired capacity (57% and 50% respectively).
In both States the most common timing of Public Trustee involvement was initiating the
dispute (50% of cases in VIC and 48% in WA), followed by involvement during the course of
administration (43% of cases in both States).
A significantly higher number of disputes escalated to Court for resolution in QLD and NSW
than in other States (18 and 13 respectively, p < 0.001, Fisher's exact test). This finding is
likely due in part to the higher number of cases overall from these States; however these
States also had a high proportion of cases escalated to court. Table 8 below provides the
number and proportion of disputes escalated to Court by State.
26
Table 8 Disputes escalated to Court by State (n=139)
Jurisdiction Cases escalated Total cases %
Australian Capital Territory 0 6 0
South Australia 3 11 27
Western Australia 4 22 18
Victoria 2 30 7
New South Wales 13 33 39
Queensland 18 31 58
Tasmania 3 6 50
Comparison with Judicial Case File Review findings
Similarities
Proportions of will makers were similar (92% for the PO file review and 89% for the judicial
case file review).
Gender of testators was similar (53% male for the PO file review and 57% male for the
judicial case file review).
The age profiles of testators were similar (9-10% were aged under 60 years, more than half
aged between 70 and 89 years for both reviews).
Family provision claims by children of the deceased (including step-children and
adopted/foster children) were the largest category of persons instigating disputes (74% of
cases for the PO file review and 62% of cases for the judicial case file review).
In the PO file review, most family provision claims (77%) were successful (i.e. led to a change
in distribution); this figure was 80% in the judicial case file review.
Differences
Family provision claims represent a greater proportion of contest types in the PO file review
(86% compared to 51% of estates for the judicial case file review). The increased proportion
of construction and validity cases in the judicial case file review may reflect a greater need
for these types of cases to escalate to Court (e.g., to determine the validity of a will or to
resolve questions or disputes as to how a will should be construed).
In the PO file review family provision was the most frequent category of contest across
States. In the judicial case file review this was also true of most States except SA and WA
where contests about validity were more common.
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Estate value was higher in judicial case file review cases (see Table 4 on page 4). One
limitation of these results is that not all cases specified whether figures stated were gross or
net values (net value was used when stated).
In the PO file review NSW had the highest proportion of estates over $1million (24%)
whereas in the judicial case file review Victoria had the highest proportion of estates over
$1million (53%).
A higher proportion of family provision claims in the judicial case file review were made by
partners or ex-partners (25% compared to 15% for PO file review).
In the PO file review there was no relationship between estimated estate value and success
rate of claims, whereas in the judicial case file review claims against a larger estate appeared
more likely to succeed than claims against a smaller estate.
Limitations This file review does not capture the full spectrum of disputes (i.e. only those dealt with by
the POs).
The data set does not provide statistics on the number of contested cases per year and there
is no information about features of non-reported cases.
Amongst the cases reviewed, the smallest estate value was $40,000 and the number of
intestate estates administered was small. Thus the data did not allow us to explore the
nature of contests as a function of testacy and intestacy or what happens if the estate is
administered informally (usually due to low value of estate <$20,000).
NB. Percentages quoted throughout this document may not total 100 due to rounding.
